The Ridiculous Trademark Saga Of Kennedy Fried Chicken

from the and-we-don't-even-like-fried-chicken dept

More trademark madness coming to us via an article in the NY Times, which tells the story of Abdul Haye, who recently received a stamp of approval for the trademark on "Kennedy Fried Chicken." Now, there are all sorts of problems with this. First of all, Mr. Haye did not create Kennedy Fried Chicken. It was actually created by another guy (both men are from Afghanistan, and apparently much of this saga involves Afghani ex-patriots in New York City). Haye worked at one of a few Kennedy Fried Chickens many years ago, and then started his own (without the blessing or licensing from the originator). Apparently, this was common in the Afghani community, where there are a ton of Kennedy Fried Chickens, most of which have no relation to one another (think: Ray's, Original Ray's, Famous Ray's, etc. when it comes to pizza in NYC).

Separately, of course, the very name Kennedy Fried Chicken has a separate problem, which is that the folks at Kentucky Fried Chicken didn't appreciate the name and sued many years ago... and won. So there shouldn't be any Kennedy Fried Chickens at all. Except, what saved the original Kennedy Fried Chicken was Kentucky Fried Chicken's decision to drop its full name and revert to the nickname KFC, leading it to no longer pay much attention to the Kennedy Fried Chickens, which continued to explode. And, yes, the original Kennedy Fried Chicken was created on purpose to play off of the KFC name, with a nod towards JFK.

However, Mr. Haye, despite not coming up with the name, not being the first, and not really having any sort of "right" to the name, did apply and get a trademark on it... and has now started threatening other Afghani shop owners who use the name. He's sent out 300 letters to others, telling them they have to pay him or he'll sue. He claims their "poor-quality chicken is going to kill my reputation." Must I point out that he copied the name in the first place? Anyway, those KFCs don't seem to have much interest in either paying Mr. Haye or backing down at all.

"We won't pay a penny," huffed Nour Abdullah, the manager of Kennedy Fried Chicken on Junction Boulevard in Corona, Queens, which seems indistinguishable from Mr. Haye's except for the fried shrimp balls and gyros on the menu. "I can rename the shop Munir Fried Chicken after my son or even New Kennedy Fried Chicken. Then let's see what he’s going to do."

A few doors down, Najib Ullah, a chicken fryer from Kabul, was equally defiant. "Anyone can own a Kennedy, and I've never heard of this Abdul Haye," he said. "Every place has a different owner: same chicken, different menu. So what’s the problem?"

As for the guy who created the original Kennedy Fried Chicken, Zia Taeb, even though he's long been out of the business, he seems to suggest he might jump into the legal fray as well:

He insisted that he -- not Mr. Haye -- was the rightful owner of the Kennedy brand. "He won't win because I know my people, and Afghans will never pay him," he said. "I will go after him."

Oh, and the biggest irony in all of this? At the very end of the article, Mr. Haye who kicked off this whole thing with his legal threats, tells the NY Times reporter over a dish of lamb chops at a different Afghani restaurant: "You know, Afghans don't even like eating fried chicken."

trademarks != patents

However, Mr. Haye, despite not coming up with the name, not being the first, and not really having any sort of "right" to the name, did apply and get a trademark on it... and has now started threatening other Afghani shop owners who use the name.

Coming up with the name and being first doesn't necessarily matter if the one who was first is no longer using the mark. Trademark rights inure from use, not from being first. If he is using the mark he has the right to apply for a federally registered trademark. Trademark examiners look to see if the mark would be confusingly similar to an existing *registered trademark,* but not to common law uses, such as by other competitors. Part of the trademark application process is the step of publicizing the trademark application so that anyone with conflicting rights, such as a common law user, has the ability to oppose the granting of the registration. Even if there is no opposition prior to registration, there is a five year post-registration period where existing rights holders can petition to have the registration cancelled. Even after this five year period, the registration can still be cancelled if the mark is deemed generic or if it was acquired through fraud on the USPTO. If the originator wanted to retain his rights to the mark, he should not have abandoned the use of it. Other restaurant owners who feel that they have superior common law rights should have either enforced those rights before the registrant sought a federal registration or should have opposed the registration during the registration process.